Ontario Board of Inquiry

Tracy Jenner

Complainant

and

Ontario Human Rights Commission

Commission

v.

Pointe West Development Corp. and Dennis Laverty

Respondents

Date of Complaint:

April 18, 1990

Date of Decision:

April 5, 1993

Before:

Ontario Board of Inquiry, Katherine Tomaszewski

Appearances by:

Tracy Jenner, On her own behalf

M. Hart and Mr. Eyolfson, Counsel for the Commission

P. Iannetta, Counsel for the Respondents

PREGNANCY — employment denied — BONA FIDE OCCUPATIONAL QUALIFICATION — absence of pregnancy for snack bar counter person — DISCRIMINATION — direct discrimination — DAMAGES — compensation for injury to dignity and self-respect

Summary: The Board of Inquiry finds that Pointe West discriminated against Tracy Jenner on the basis of sex when it refused to reemploy her for the 1990 season because she was pregnant.

Pointe West operated a golf course in Amherstburg, Ontario. During the 1989 season Ms. Jenner worked there as a snack bar counter person. In preparation for the 1990 season, Stella Coulter, Ms. Jenner's supervisor in 1989, phoned Ms. Jenner in April to ask whether she would be returning to work. Ms. Jenner said yes but informed Ms. Coulter that she was pregnant. Ms. Coulter informed her that she would not be hired because Dennis Laverty, the Operations Manager, wanted someone who would be available for the whole season. Although Ms. Jenner intended to work until the birth and would return to work three weeks after delivery, the Board of Inquiry finds that the decision not to rehire Ms. Jenner was made without any inquiry as to her actual availability or any accommodation that could be made.

The Board of Inquiry finds that Mr. Laverty treated being pregnant as synonymous with not being available for the whole season. On the facts of the case, the question of availability is so clearly linked with pregnancy and being a woman that Mr. Laverty' s decision to not hire her because she would not be available for the whole season amounts to deciding not to hire her because she was pregnant. This is a case of direct discrimination.

The Board of Inquiry also finds that being available for the whole season was not a bona fide qualification for the job, since Ms. Jenner could have been replaced for the three weeks that she would be absent for childbirth.

The Board of Inquiry concludes that Ms. Jenner was discriminated against because of her sex.

The Board of Inquiry orders Pointe West to pay Ms. Jenner $5,487.23 as compensation for lost wages, and $2902.69 in interest.

It also orders the Board of Inquiry to pay $5,000 in damages for mental anguish. Ms. Jenner testified that she was afraid to become pregnant because she was looking for a job and feared that she would not be hired. Given Ms. Jenner's expressed need to work, this fear is a significant injury arising out of an infringement of the Code. Such a fear interferes with a woman's ability to make an important and intimate decision about whether to bear a child. The Board of Inquiry finds that the fear of getting pregnant constitutes mental anguish for the purposes of the Code.

CASES CITED

Adair v. K.B. Home Insulation Ltd. (1991), 1991 CanLII 13133 (ON HRT), 15 C.H.R.R. D/331 (Ont. Bd.Inq.): 5

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281, 10 C.H.R.R. D/6347 (C.A.): 41

Cunningham v. Royal Canadian Legion Branch 594 (1993), 1993 CanLII 16503 (ON HRT), 20 C.H.R.R. D/239 (Ont. Bd.Inq.): 44

Middleton v. 491465 Ontario Ltd. (1991), 1991 CanLII 13179 (ON HRT), 15 C.H.R.R. D/317 (Ont. Bd.Inq.): 23, 44

Poliquin v. Canada (Dept. of National Defence) (1988), 1988 CanLII 120 (CHRT), 9 C.H.R.R. D/5296 (Can.Trib.): 24

Salamon v. Searchers Paralegal Services (1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162 (Ont. Bd.Inq.): 5

Toronto (City) Board of Education v. Quereshi (1991), 1991 CanLII 13130 (ON CTGDDC), 14 C.H.R.R. D/243 (Ont. Div.Ct.): 28

Waterman v. National Life Assurance Co. of Canada (No. 1) (1992), 1992 CanLII 14298 (ON HRT), 18 C.H.R.R. D/173 (Ont. Bd.Inq.): 5

Wiens v. Inco Metals Co. (1988), 1988 CanLII 8869 (ON HRT), 9 C.H.R.R. D/4795 (Ont. Bd.Inq.): 33

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 45

Human Rights Code, 1981, S.O. 1981, c. 53

s. 4(1): 2, 20

s. 8: 2, 20

s. 10: 28

s. 40: 43

s. 40(1): 42

s. 40(1)(b): 35

I. INTRODUCTION

1I was appointed by the Minister of Citizenship as a board of inquiry under the Ontario Human Rights Code on October 19, 1992. The hearing convened on November 18, 1992, at which time it became apparent that the respondent, Dennis Laverty, would be out of the country until the end of February 1993. The hearing was adjourned until March 10, 1993, at which time a snow storm forced an adjournment of the hearing until March 11, 1993. The hearing of evidence was concluded on March 12, 1993.

2This inquiry involves a complaint made by Tracy Jenner that she was refused employment because she was pregnant, causing her to suffer discrimination on the basis of sex, contrary to ss. 4(1) and 8 of the Human Rights Code, S.O. 1981, c. 53, as amended.

II. PRELIMINARY MATTERS

a) Parties to the Proceeding (Amendments to the Complaint)

3Counsel for the Commission requested two amendments to the complaint, both of which were agreed to by counsel for the respondents. First, the complaint was amended to reflect the correct name of the corporate respondent, which was amended to "Pointe West Development Corp." Second, Stella Coulter was removed as a named respondent. The respondents in this matter are Pointe West Development Corp. (Pointe West), and Dennis Laverty.

b) Disclosure of Documents

4Counsel for the respondents made a motion to request disclosure of two documents: a medical report of a Dr. Dipierdomico, dated November 1990, and a witness statement relating to Stella Coulter, dated January 25, 1991. It appears that Dr. Dipierdomico was Ms. Jenner's family physician at the times relevant to this complaint.

5Counsel for the Commission argued that these documents were prepared in anticipation of litigation, and were privileged. He relied on Salamon v. Searchers Paralegal Services(1987), 1987 CanLII 8508 (ON HRT), 8 C.H.R.R. D/4162; Adair v. K.B. Home Insulation Ltd.(1991), 1991 CanLII 13133 (ON HRT), 15 C.H.R.R. D/331; Waterman v. National Life Assurance Company of Canada, September 8, 1992, unreported [now reported 1992 CanLII 14298 (ON HRT), 18 C.H.R.R. D/173]. I agreed with counsel for the Commission, and on the basis of these cases, ruled that the motion be dismissed.

6Counsel for the respondent argued that it was inappropriate to permit the Commission to claim privilege for these documents, as it put the Commission in both an investigative and an adversarial position. My response to counsel on this point is to quote the Waterman decision, supra [D/175, para. 10]:

[T]he Commission becomes a partisan only after the Commissioners, by vote, agree that prima facie infringement of the Code has occurred and therefore ask the Minister to appoint a Board of inquiry. Until then, the Commission is an impartial searcher for the truth . . .

III. THE FACTS

7The facts in this case are not in dispute, although there is some ambiguity on some points, caused largely by the passing of time and the fading of memories. Pointe West operates a golf course in Amherstburg. Tracy Jenner was employed with the respondent Pointe West as a snack bar counter person during the 1989 golf season. Her employment commenced on July 31, 1989, and ended October 7, 1989. Both Mr. Laverty (Manager of Operations for Pointe West at all times relevant to this case), and Stella Coulter (Ms. Jenner's supervisor in 1989) agreed that the work performed by Ms. Jenner was satisfactory.

8In anticipation of the 1990 golfing season, Mr. Laverty instructed Ms. Coulter to contact Ms. Jenner to find out whether she would be returning to work for Pointe West. Ms. Coulter telephoned Ms. Jenner on April 4, 1990, and asked whether she would be returning to work for Pointe West. Ms. Jenner said "yes," and I find that it was their mutual but unspoken intention that the position offered would be the same as that which Ms. Jenner had held the year before as snack bar counter person.

9During this first telephone conversation Ms. Coulter mentioned that Pointe West had "gone private," meaning that club clientele was now restricted to private membership and that snack bar personnel would be required to wear uniforms. She further indicated where the uniforms could be purchased. At this point, Ms. Jenner expressed some concern about sharing some information with Ms. Coulter, namely, that she was pregnant. Ms. Jenner then offered to purchase two pairs of pants and to have one altered to fit her as the need arose.

10Ms. Coulter indicated that she would have to talk about it with Mr. Laverty, and told Ms. Jenner to give her a call back later that night. It was Ms. Jenner's evidence that there was no discussion at this time of the anticipated due date, the amount of time which Ms. Jenner would need to take off work or any possible accommodations which would be necessary as her pregnancy progressed. This evidence is consistent with the evidence given by Ms. Coulter and Mr. Laverty.

11Ms. Jenner telephoned Ms. Coulter at 8:30 p.m. that same evening. During this second telephone conversation, Ms. Coulter told Ms. Jenner that Mr. Laverty was looking for someone for the whole season. Ms. Jenner indicated that she was due on August 31, 1990, and that she was willing to work until the day of her delivery and to return to work three weeks after the baby was born. According to Ms. Jenner, Ms. Coulter's response was that she'd "have to talk more with Dennis" (Mr. Laverty). Ms. Coulter repeated that Mr. Laverty was looking for someone for the whole season, and so, Ms. Jenner would not be hired.

12There were no more discussions that night between Ms. Jenner and a representative of Pointe West about the possibility of employment as a snack bar counter person. Ms. Jenner called the local office of the Ontario Human Rights Commission the following day, April 5, 1990. The complaint is dated April 18, 1990.

13I find as a fact that Mr. Laverty did not have any knowledge of Ms. Jenner's availability for the 1990 season at the time when he made the decision not to rehire Ms. Jenner. This decision was made between the time of the two telephone calls involving Ms. Coulter and Ms. Jenner on April 4, 1990. Mr. Laverty's evidence was that he did not know of Ms. Jenner's plans concerning absence from work until he was contacted by Mr. MacKinnon, the human rights officer involved in this case. Although it is unclear from his testimony, I find on the balance of probabilities that he did not have knowledge of Ms. Jenner's actual due date at the time the decision to not rehire was made.

14I find that there was no discussion of accommodation prior to the decision to not rehire Ms. Jenner, nor was there any effort on the part of Mr. Laverty to ascertain Ms. Jenner's actual availability before the decision in question was made.

IV. LIABILITY UNDER THE ONTARIO HUMAN RIGHTS CODE

15It is clear that Mr. Laverty intended to hire Ms. Jenner as a snack bar counter person for the 1990 season, and that he changed his mind and revoked the offer of employment upon learning that she was pregnant. Ms. Coulter's recollection was that upon learning that Ms. Jenner was pregnant, Mr. Laverty expressed the opinion that if "she can't finish the whole season there's no sense to bring her back." Ms. Coulter indicated that these may not have been Mr. Laverty's exact words, but that this was his opinion.

16I find as a fact that Mr. Laverty's decision to not rehire Ms. Jenner was based on his concern about her availability for the 1990 season, and not on concerns about her ability to perform her duties, or the effect of working on her health. There was some concern expressed by Ms. Jenner that she was not hired because a person with a "big belly" would not fit the image that Pointe West wished to cultivate as a private golf club. Although this is an understandable concern, there was insufficient evidence before me to make a finding on this point.

17Mr. Laverty gave evidence that Ms. Jenner was not hired because she was not available for the whole 1990 season, and not because she was pregnant. He also gave evidence that the golf season runs from some time in April until late October or early November, depending on the weather. He made it clear that July and August were the peak months, which were "incredibly busy."

18Ms. Coulter gave evidence that it is a drain on the staff to lose employees during the peak season, since new staff would have to be trained at that time as well. She testified that such training could take up to one week. Further evidence was given about the need for staff continuity by Ms. Penfold, Mr. Laverty's superior. Ms. Penfold indicated that a stable staff was necessary because of the relationship between the staff and the club membership, which would involve the same members all the time as it was now a private club. She also indicated that staff turnover could lead to member dissatisfaction and possible speculations about management stability.

19The essence of the respondents' argument, as I understand it, is that Ms. Jenner was not hired because of the job requirement that she be available for the entire season, that this requirement was a neutral and bona fide job requirement, and that it would have applied to anyone, pregnant or not, who was not available for the whole 1990 season.

20There are several difficulties with this argument. First, Mr. Laverty decided to not hire Ms. Jenner before he knew how long Ms. Jenner was willing to work. It appears to me, that in Mr. Laverty's mind, "pregnant" was synonymous with "unavailable for the whole season" as far as Ms. Jenner was concerned. It is as difficult to separate "taking some time off to have a baby" from "pregnant" as it is to separate "being a woman" from "pregnant." In other words, on the facts of this case, the question of availability is so closely linked to the fact that Ms. Jenner was pregnant, that Mr. Laverty's decision to not hire Ms. Jenner because he believed that she would not be available for the whole 1990 season amounted to a decision to not hire her because she was pregnant. This amounts to direct discrimination in breach of ss. 4(1) and 8 of the Human Rights Code, S.O. 1981, c. 53 as amended.

21The second difficulty I have with the respondents' argument is that the "requirement" that prospective staff be available for the whole season was not applied to a 1990 employee named Cheryl, who was a student whom Mr. Laverty had hired before Ms. Jenner was contacted on April 4, 1990. Mr. Laverty knew at the time that Cheryl was hired that she would be leaving to return to school, and her employment was terminated on August 25, 1990. Mr. Laverty offered no explanation for why it was possible for Pointe West to accommodate the employment needs of a student and not the possible needs of Ms. Jenner. The importance of availability for the whole season as a requirement for the job of snack bar counter person is diminished by the employment of a person whom Mr. Laverty knew would leave before the season was over.

22The importance of availability for the whole season is further diminished by the fact that Ms. Coulter left suddenly in August (her employment was terminated on August 4, 1990). Ms. Coulter was the supervisor of the personnel in the snack bar, and yet, on Mr. Laverty's own admission, the snack bar operations continued without interruption despite the fact that Ms. Coulter resigned in the middle of the peak season.

23The third difficulty I have with the respondents' argument is that the rationale for minimizing staff turnover, expressed by Ms. Penfold, does not apply to the situation of Ms. Jenner's pregnancy. The fact that Ms. Jenner would be away for a period of time to have a baby would have been obvious to all club members who patronized the snack bar. It is difficult to see how this could lead to member dissatisfaction or possible speculations about management stability. Even if it could, these are not concerns which would justify a denial of employment to a woman because she is pregnant and therefore likely to be unavailable to work for some period of time. It is clear that customer preference cannot be used to justify a discriminatory act (see Middleton v. 491465 Ontario Ltd.(1991), 1991 CanLII 13179 (ON HRT), 15 C.H.R.R. D/317).

In short, I am not convinced that "availability for the whole season" was bona fide occupational qualification for the job of snack bar counter person at Pointe West in 1990.

24Counsel for the respondents sought to characterize the offer of employment made in the first telephone call to Ms. Jenner on April 4, 1990, as an offer of employment conditional on availability for the whole 1990 season. He argued that Ms. Jenner's (presumed) unavailability amounted to a counter-offer in the contract of employment which Pointe West was not obliged to accept. In making these arguments, counsel sought to bring Ms. Jenner's situation on all fours with the facts in Poliquin v. Canada (Department of National Defence)(1988), 1988 CanLII 120 (CHRT), 9 C.H.R.R. D/5296.

25In the Poliquin case, supra, three complainants were French language teachers who worked for the Department of National Defence on term contracts. Each of the complainants became pregnant and when their contracts came up for renewal, they were offered new contracts contingent on their availability for work. The complainants accepted the contracts but indicated they would not be going to work because they would require maternity leave. The contracts were withdrawn. The Tribunal held that this did not constitute discrimination because of pregnancy. The facts of the Poliquin case are quite different from the facts which gave rise to the present complaint. In the Poliquin case, complete availability for the entire term of the contract was an express condition of the offer of employment. In the present case it was not.

26In the Poliquin case, supra, the complainants accepted the offer of employment knowing that they would not be available to perform the duties required of them. They did this for reasons relating to their job status as term positions. They had no intention of honouring the contract, but sought to maintain a term position while on maternity leave. This was impossible under the regulations governing their positions. In the present case, Ms. Jenner was offered seasonal employment (not a highly regulated term position with the government) which she accepted with every intention of performing her duties for the whole 1990 season, excluding three weeks for maternity leave.

27In the Poliquin case, supra, the employer was entitled to withdraw the offer of a term position because the complainants were unavailable to do the work. In the present case, Ms. Jenner was available to do the work.

28Because of my finding of direct discrimination, it is not necessary for me to consider the question of adverse effect discrimination. If it had been necessary for me to consider it, however, I would have held that a case of adverse effect discrimination had been proved. Counsel for the respondents argued that because s. 10 of the Code was not cited in the complaint, a case of adverse effect discrimination could not properly be put before the Board of Inquiry in this case. He relied on Toronto (City) Board of Education v. Quereshi(1991), 1991 CanLII 13130 (ON CTGDDC), 14 C.H.R.R. D/243, in support of his submissions. That decision is based on a unique set of facts which did not present themselves in the case before me. If it had been necessary for me to do so, I would have held that a case of adverse effect discrimination could have been properly put before this Board of Inquiry.

V. THE REMEDY

29Much evidence was adduced describing the duties to be performed by a snack bar counter person, including photographs of the snack bar and patio area adjacent to the snack bar. I am convinced that with minor accommodations during the last four to eight weeks of Ms. Jenner's pregnancy, Ms. Jenner would have been capable of working until the date of her delivery. I am equally convinced that she could have returned to work three weeks later with similar minor accommodations for approximately three weeks after returning to work.

30Dr. Bourke, the obstetrician who delivered Ms. Jenner's baby, testified that Ms. Jenner had a healthy, normal pregnancy, and a normal delivery. He viewed the photographs of the snack bar and patio area, and opined that there would be no problem for a pregnant woman to lift or move the patio furniture. His only concern was that Ms. Jenner would have needed to avoid heavy lifting or bending, and that she may have had some fatigue from going up and down the four stairs. Evidence was led that during a busy shift, Ms. Jenner might have had to go up and down the steps a hundred times.

31Dr. Bourke suggested that apart from getting help for the heavy lifting, an extra break during work may help to relieve fatigue and stress. Ms. Jenner expressed concern that she would not have been required to climb a ladder and pick pickle jars onto a shelf in the storage area, that she have a chair behind the counter to rest on when she was not so busy, and that her shifts be scheduled to accommodate doctor's appointments. Apart from these minor accommodations, it does not appear that any other accommodations would have been necessary to permit Ms. Jenner to work until her due date, and to return to work after three weeks.

32Although Dr. Bourke testified that most women stop work between the thirty-second and thirty-sixth week of pregnancy, and return to work after a period of six to eight weeks, he agreed that it would have been possible for Ms. Jenner to work until her date of delivery and to return to work three weeks later, provided these minor accommodations were made, and she felt well otherwise.

33In my opinion, a pregnant woman should be entitled to make her own decision about how long she will work, and how much time she will take off to have her baby. She will, of course, be wise to listen carefully to her doctor's advice, but this is not a decision for an employer to make. The proper test, in my opinion, is that enunciated in Wiens v. Inco Metals Company, Ontario Division (1988), 1988 CanLII 8869 (ON HRT), 9 C.H.R.R. D/4795 at D/4819 (para. 37290):

It is more in keeping with equality objectives to allow the individual the informed choice of accepting the very slight risk or rejecting the very slight risk in favour of alternative employment.

34Ms. Jenner gave birth to her baby on August 30, 1990. Had she been working at Pointe West, she would have taken the first three weeks of September off. These weeks fell outside the peak season, and a replacement could have been planned for some time, since Ms. Jenner's expected due date was August 31, 1990. There is no evidence to suggest that accommodating Ms. Jenner would have caused undue hardship to the respondents.

35I conclude therefore that Ms. Jenner would have worked the whole 1990 season, except for the first three weeks of September, had she not been refused employment because she was pregnant. Ms. Jenner is entitled to compensation for lost wages and interest on this amount. She is also entitled to compensation for mental anguish under s. 40(1)(b) of the Code and interest on that amount.

VI. CALCULATION OF DAMAGES

a) Special Damages (Lost Wages)

36Section 40(1)(b) of the Code provides that:

Where the board of inquiry, after a hearing, finds that right of the complainant under Part 1 has been infringed and that the infringement is a contravention of section 8 by a party to the proceeding, the board may, by order . . . direct the party to make restitution, including monetary compensation, for loss arising out of the infringement . . .

Ms. Jenner's "loss arising out of the infringement" includes the wages she would have earned had she been hired to work at Pointe West as a snack bar counter person in 1990. I have already determined that she would have worked the whole season, but for the first three weeks in September.

37Ms. Coulter testified that Ms. Jenner and Ms. Gignac, an employee who returned to work at Pointe West in 1990, would have worked roughly the same number of hours, but that because Ms. Gignac was senior to Ms. Jenner, Ms. Gignac would have had first choice of extra hours. The wage records for 1989 indicate that Ms. Jenner worked an average of 33.11 hours per week, while Ms. Gignac worked an average of 31.44 hours per week, in 1989. Counsel for the Commission argued that the correct measure of Ms. Jenner's lost wages should be determined by taking the total earnings of Ms. Gignac in 1990, and subtracting the earnings for the first three weeks of September.

38Counsel for the respondents argued that the appropriate measure would be to look at the earnings of another employee hired for the 1990 season, Ms. Fauteaux, on the theory that since Ms. Fauteaux was hired to replace Ms. Jenner, her earnings represent what Ms. Jenner could have earned. It comes as no surprise that Ms. Fauteaux earned less than Ms. Gignac in 1990. From my understanding of the evidence, there is some discrepancy as to when Ms. Fauteaux was hired. Ms. Coulter indicated that Ms. Fauteaux was hired before April 4, 1990, when Ms. Jenner was offered a position. Mr. Laverty maintained that she was hired to replace Ms. Jenner.

39Given this discrepancy and the fact that the hours of Ms. Jenner and Ms. Gignac were comparable in 1989, that Ms. Coulter testified that Ms. Jenner and Ms. Gignac would have worked comparable hours in 1990, and the fact that Ms. Jenner would have had more seniority vis-à-vis other employees in 1990 than Ms. Fauteaux enjoyed, it is my opinion that the hours worked by Ms. Gignac in 1990 represent the hours which Ms. Jenner is likely to have worked in 1990, had she been given the job.

Ms. Gignac worked until November 3, 1990. Given Mr. Laverty's concern that she be available to work the whole season in 1990, I find it appropriate to conclude that Ms. Jenner would have worked the whole season, to November 3, 1990.

I find on this basis that Ms. Jenner is entitled to $5,487.23 in lost wages.

40I also find that Ms. Jenner fulfilled her duty to mitigate her damages. She pursued other job possibilities from May to August 1990, in Amherstburg. I find that it was reasonable for her to restrict her search to the Amherstburg area since she did not have a car which would have enabled her to commute further away to work. Counsel for the respondent suggested several restaurants in Amherstburg where she might have but did not apply for a job. There was no evidence before me that there were any jobs available at the relevant time in any of these establishments. It was Ms. Jenner's evidence that she did not wish to work in some of these places. In my opinion it is reasonable for a woman to choose what type of establishments she wishes to work in, especially where this choice did not eliminate the possibility of finding employment. Ms. Jenner was unsuccessful in finding other employment.

41I would also add, in response to one line of arguments put forward by counsel for the respondent, that boards of inquiry do not have to be confined to principles used in wrongful dismissal cases (see Piazza v. Airport Taxicab (Malton) Assn.(1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 [10 C.H.R.R. D/6347] (C.A.)).

I will deal with the question of interest after dealing with the question of compensation for mental anguish.

b) Compensation for Mental Anguish

42Section 40(1) provides:

. . . where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000 for mental anguish.

It is clear on the facts of this case that the infringement was engaged in wilfully by Mr. Laverty, and through him, by the corporate respondent.

43Ms. Jenner testified that she was afraid to get pregnant because she was looking for a job; that it was hard enough to find a job. She testified that she continues to have this fear. In my opinion, given Ms. Jenner's expressed need to work, this fear is a significant injury arising out of the infringement of the Code, and amounts to mental anguish. Ms. Jenner is a young woman at a time of life when it is normal and desirable to have children. Such a fear interferes with what is surely one of the most important and intimate decisions which any woman can make in her life, namely whether or not to bear a child. I find that the fear of getting pregnant constitutes mental anguish for the purposes of s. 40 of the Code.

44This leaves me with the question of the appropriate amount of compensation to be awarded for this mental anguish. Although no amount of money can actually compensate for this type of injury, I find that the amount of $250 to $375 suggested by counsel for the respondents to be insufficient. Based on my observations of the complainant as she testified about this matter, I find the amount of $5,000 as suggested by counsel for the Commission to be appropriate (see also Middleton, supra, $2,500 awarded; Cunningham v. Royal Canadian Legion Branch 594, February 26, 1993, unreported [now reported 1993 CanLII 16503 (ON HRT), 20 C.H.R.R. D/239], $5,000 awarded).

c) Interest

45This brings me to the question of interest. Counsel for the Commission requested that interest be awarded on the amount of lost wages (special damages) from the mid-point of the loss, that is from August 1, 1990. Counsel requested interest from the date of the infringement of the Code, that is April 4, 1990, on the amount of damages awarded for mental anguish. Counsel for the Commission further requested that this interest be at the rate of 10 percent, which is the average of the interest rates applicable to the appropriate time period under the Courts of Justice Act, R.S.O. 1990, c. C.43. I find that it is appropriate to follow the guidelines under this statute, even though they are not binding on a board of inquiry under the Code (see Cunningham, supra, at 15).

46Counsel for the respondents did not dispute the method with which counsel for the Commission sought to calculate interest, but suggested that the delay involved in this case should be taken into account when fashioning a remedy, particularly as regard to the question of general damages and interest. While it is a cause for concern that such a relatively straightforward case as this should take nearly three years to complete, this is not relevant to either the question of general damages or interest.

47Interest on an award is compensation to the complainant for being out of the money awarded for the period between the loss and the award. The respondent has had, at least notionally, the use of this money during this time, and thus suffers no loss or prejudice by the award of interest.

48The amount of interest is to be calculated as follows:

$5,487.23 @ 10% from August 1, 1990, to March 12, 1993: equals 2.614 (yrs.) × 10% × 5,487.23 = $1,434.20 interest on the award for lost wages

$5,000 @ 10% from August 1, 1990, to March 12, 1993: equals 2.94 (yrs.) × 10% × 5,000 = $1,468.49 interest on the award for mental anguish

The complainant is further entitled to interest at the rate of $2.87 per day from March 12, 1993, to the date of this judgment. This amount equals the amount of interest accruing each day on the award for lost wages ($5,487.23) and mental anguish ($5,000) at an annual rate of 10%.

49Since the complainant was in receipt of unemployment and social assistance benefits during the relevant time period in 1990, it would be appropriate for the respondents to remit these amounts directly to the Receiver General on behalf of the complainant, once the exact amounts of these benefits have been determined. I will remain seized of this matter until the order attached to this decision has been satisfied.